Exhibit 10.35





Exhibit 10.35




EXECUTION COPY




AMENDMENT TO THE DISTRIBUTION AGREEMENT




This Amendment (this “Amendment”) is made and entered into as of October 13, 2009, by
and among Agrium U.S., a Colorado corporation (“Agrium U.S.”) and a wholly-owned subsidiary
of Agrium Inc., a corporation governed by the Canada Business Corporation Act (“Agrium
Inc.”), Rentech Development Corporation, a Colorado corporation (“Rentech”) and Rentech
Energy Midwest Corporation, a Delaware corporation (“REMC”). Capitalized terms used but not
defined herein shall have the meanings assigned to them in the Distribution Agreement (as defined
below).



RECITALS




WHEREAS, Agrium U.S. has, directly or indirectly, as a successor-in-interest, certain of the
rights, title and interest in, to and under that certain Distribution Agreement, dated as of April
26, 2006, by and among Agrium U.S. (as successor to Royster-Clark Resources LLC, a Delaware limited
company), and Rentech, as amended from time to time (the “Distribution Agreement”);



WHEREAS, concurrently with the execution of this Amendment, Rentech wishes to assign, convey
or otherwise transfer all of its rights, title and interest under the Distribution Agreement to
REMC in accordance with Section 8.2 of the Distribution Agreement;



WHEREAS, Agrium Inc. is currently undergoing discussions with the Federal Trade Commission
(the “FTC”) and the Canadian Bureau of Competition in connection with Agrium Inc.’s
unsolicited proposal to acquire of CF Industries Holdings, Inc. (“CF”);



WHEREAS, in connection with Agrium Inc.’s proposed acquisition of CF, Agrium U.S. wishes and
agrees to amend the Distribution Agreement as contemplated by the terms and subject to the
conditions of this Amendment; and



WHEREAS, each of Rentech and REMC wishes and agrees to amend the Distribution Agreement as
contemplated by the terms and subject to the conditions of this Amendment.



AGREEMENT




NOW, THEREFORE, for and in consideration of the foregoing, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, each of Agrium U.S., Rentech and REMC
hereby agrees as follows:



1. Termination of Article I and Article II of the Distribution Agreement.
Notwithstanding anything contained in the Distribution Agreement to the contrary and upon the terms
and subject to the conditions of this Amendment (but subject to Section 2 below), concurrently with
the closing of Agrium Inc.’s proposed acquisition


 


 









 




of CF, which closing shall be deemed to have
occurred concurrently with Agrium Inc.’s acquisition of a majority of the issued and outstanding
shares of common stock of CF (on a fully diluted basis), whether by a merger or an exchange offer
(the “Closing”) (such time is referred to herein as the “Effective Time”), each of
Agrium U.S.’s, Rentech’s and REMC’s rights (including distribution and marketing rights),
obligations and interests in, to and under Article I (Appointment and Terms of Distribution) and
Article II (Purchase Orders, Price, Payment and Delivery Terms) of the Distribution Agreement shall
be terminated.




2. Payment Survival.



Notwithstanding Section 1 above:



a. Agrium U.S.’s, Rentech’s and REMC’s rights, obligations and interests in, to and under
Article I and Article II of the Distribution Agreement with respect to any and all outstanding
amounts payable or receivable (including, without limitation, any Applicable Commission or
assumption of credit risk), as applicable, as of immediately prior to the Effective Time, shall
survive the termination contemplated by this Amendment and shall continue to be in full force and
effect until such outstanding amounts are paid in full by the applicable party herein.



b. It is hereby acknowledged and agreed that (i) in the event the Effective Time occurs on any
date other than April 25, 2010 (or April 25, 2011, as applicable), the maximum amount of the
Applicable Commission to be paid pursuant to Section 2.3 of the Distribution Agreement (i.e.,
$5,000,000 with respect to any twelve month period commencing on April 26 of a year and ending on
April 25 of the next succeeding year) shall be pro rated to reflect the fact that the termination
of the provisions of Article I and Article II of the Distribution Agreement pursuant to this
Amendment occurred on a date that is other than April 25, 2010 (or April 25, 2011, as applicable),
(ii) to the extent applicable, the parties agree to reconcile between the actual amount of
Applicable Commission already paid during, or to be paid with respect to, the period starting on
April 26, 2009 (or April 26, 2010, respectively) and ending at the Effective Time and the adjusted
amount of the Applicable Commission (as adjusted pursuant to clause (i) above) (i.e., Agrium U.S.
shall refund to REMC any amount of the Applicable Commission paid during, or to be paid with
respect to, such period which were in excess of the adjusted maximum amount of the Applicable
Commission (as adjusted pursuant to clause (i) above)), and (iii) any outstanding amounts payable
or receivable under Article I and Article II of the Distribution Agreement (including with respect
to the Applicable Commission, as adjusted, as contemplated by clauses (i) and (ii) above) shall be
paid in accordance with the terms and conditions of the Distribution Agreement.



c. Agrium U.S.’s, Rentech’s and REMC’s rights (including distribution and marketing rights),
obligations and interests in, to and under Article I and Article II of the Distribution Agreement
with respect to any and all purchase orders


 


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governing any Facility Products which are outstanding
immediately prior to the Effective Time shall survive the termination contemplated by this
Amendment and shall continue to be in full force and effect until such purchase orders are fully
satisfied in accordance with their terms and conditions.



3. Use of Ammonia and UAN railcars by REMC.



a. During the period between the Effective Time and December 31, 2010, Agrium U.S. (i) shall
maintain ten (10) ammonia railcars and ten (10) UAN railcars and (ii) shall make such railcars
available for use by REMC, at REMC’s option (which option must be exercised within ten (10)
business days after the Effective Time), in the Facility, in each case, subject to the terms and
conditions of the applicable lease agreement(s) governing such railcars between Agrium U.S. and the
applicable leasing company. REMC hereby acknowledges and agrees to operate and maintain such
railcars in accordance with the terms and conditions of the applicable lease agreement(s) governing
such railcars between Agrium U.S. and the applicable leasing company. Subject to the terms and
conditions of the applicable lease agreement(s), Agrium U.S. shall provide REMC with a copy of the
applicable lease agreement(s) not later than ten (10) business days following the date hereof.



b. During the period between January 1, 2011 and December 31, 2015, Agrium U.S. shall maintain
ten (10) ammonia railcars and REMC may, at REMC’s option (which option must be exercised not later
than December 15, 2010), for the entire duration of such period, sublease such ten (10) ammonia
railcars from Agrium U.S., in each case, subject to the terms and conditions contained in the
applicable lease agreement(s) governing such railcars between Agrium U.S. and the applicable
leasing company. The terms and conditions of such sublease agreement(s) between Agrium U.S. and
REMC (including the consideration to be paid in connection with REMC’s sublease of such ten (10)
ammonia railcars) shall be on a fully-net basis (so that all the costs and expenses incurred by
Agrium U.S. in connection with the applicable lease agreement(s) with the applicable leasing
company shall be paid in full by REMC) and shall reflect the same terms and conditions contained in
the underlying lease agreement(s) between Agrium U.S. and the applicable leasing company, as
applicable. To the extent different than the lease agreement(s) previously provided to REMC in
accordance with Section 3(a) above, and subject to the terms and conditions of the applicable lease
agreement(s), Agrium U.S. shall provide REMC with a copy of the applicable lease agreement(s) not
later than December 1, 2010.



c. Subject to applicable law, Agrium U.S. shall use its commercially reasonable efforts to
take all actions (reasonably within Agrium U.S.’s control) which may be necessary to provide REMC
with the full benefit of such applicable lease agreement(s) referred to in Section 3(a) and Section
3(b) above, as
applicable (including, to the extent requested by REMC, extending the term thereof until
December 31, 2010 and December 31, 2015, as applicable) as they relate to such railcars.


 


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d. Upon REMC’s exercise of its option pursuant to Section 3(a) and/or Section 3(b) above, as
applicable, and subject to the terms and conditions of the applicable lease agreement(s) governing
such railcars between Agrium U.S. and the applicable leasing company, Agrium U.S. shall permit REMC
to exclusively direct and manage all operations, administrative matters, contract management
(including amendments), negotiations, claims, bankruptcy or other proceedings involving such lease
agreement(s) as they relate to the railcars utilized by REMC. Agrium U.S. shall promptly pay REMC
any amounts received in connection with any such lease agreement(s) referred to in Section 3(a) and
Section 3(b) above, as applicable, as they relate to such railcars being utilized by REMC during
the option periods contemplated under Section 3(a) and Section 3(b) above, as applicable. Agrium
U.S. shall also, at Agrium U.S.’s expense: (i) comply with any reasonable lawful instruction
provided by REMC in respect of the applicable lease agreement(s) as they relate to the railcars
utilized by REMC; (ii) refrain from incurring any costs under such lease agreement(s) which were
not scheduled to be paid pursuant to the applicable lease agreement(s); and (iii) provide any
relevant information, as reasonably requested by REMC, in connection with any such lease
agreements(s) as they relate to the railcars being utilized by REMC. Agrium U.S. further agrees to
not amend, modify, terminate, extend or grant any waivers under any applicable lease agreement as
they relate to the railcars being utilized by REMC without REMC’s prior written consent (which
consent may not be unreasonably withheld, delayed or conditioned).



e. To the extent REMC exercises the option referred to in Section 3(a) and/or Section 3(b)
above, REMC shall indemnify Agrium U.S. and its affiliates for, and hold Agrium U.S. and its
affiliates harmless from, all Losses arising out of, resulting from or otherwise in respect of
REMC’s use and maintenance of any of the railcars referred to in Section 3(a) and/or Section 3(b)
above, as applicable, and shall reimburse such persons from and against and with respect to all
Losses resulting or arising thereunder. REMC shall not be required to indemnify Agrium U.S. and
its affiliates for Losses to the extent arising out of, or resulting from, Agrium U.S. or any its
affiliates’ intentional acts, omissions or negligence or non-compliance with this Section 3.
“Losses” shall mean any and all losses, injuries, damages, deficiencies, claims,
liabilities, costs (including reasonable legal and other costs), penalties, interest, expenses and
obligations; provided, however, that Losses shall not include punitive, exemplary, remote or
speculative damages, except to the extend paid by Agrium U.S. or its affiliates to a third party.



4. Extension of the Storage Term pursuant to Article III of the Distribution
Agreement.



a. Notwithstanding anything contained in the Distribution Agreement to the contrary and upon
the terms and subject to the conditions of this
Amendment, concurrently with the Closing, Article III (Terminal Services) of the Distribution
Agreement shall be amended such that Agrium U.S. shall grant REMC an option to extend the Storage
Term of the Terminal Services in the NIOTA Facility for an


 


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additional five (5) year period starting
on July 1, 2016 and ending on June 30, 2021, which extended Storage Term shall continue to be
subject to the terms and conditions currently in effect under the Distribution Agreement.



b. REMC shall have the right to exercise such option contemplated by Section 4(a) of this
Amendment upon a written notice to Agrium U.S., which written notice shall be delivered to Agrium
U.S. no later then the end of business day on March 31, 2016.



c. Except as provided in this Section 4 and Section 9, the provisions of Article III shall
remain unchanged during such additional five (5) year period.



5. Transitional Services. During the period between the Effective Time and six (6)
months thereafter, at no cost to REMC, Agrium U.S. shall provide REMC with transitional marketing
(including the provision of detailed customer lists, customer contact information and customer
account history), customer service and related IT support, in each case, only with respect to the
marketing and sale of Products from the Facility and the storage of the same (the “Transitional
Services”). Agrium U.S. shall provide the Transitional Services in a manner consistent with
Agrium U.S.’s internal practices prior to the Closing and otherwise in a manner intended to
facilitate the transfer of responsibility over the marketing of Product produced at the Facility
from Agrium U.S. to REMC as contemplated hereby. Nothing in this Section 5 shall require Agrium
U.S. to perform, or cause any third party to perform, such Transitional Services in a manner that
would constitute a violation of any law. REMC shall indemnify Agrium U.S. and its affiliates for,
and hold Agrium U.S. and its affiliates harmless from, all Losses arising out of, resulting from or
otherwise in respect of negligent actions or willful misconduct by REMC or its subsidiaries,
agents, employees or affiliates with respect to the receipt of the Transitional Services or that
otherwise damage Agrium U.S.’s property, facilities, equipment or other infrastructure used in the
provision of such Transitional Services.



6. Additional Terminal Services.



a. If the Effective Time occurs on or before June 30, 2010, then during the period between
July 1, 2010 and June 30, 2015, Agrium U.S. shall provide REMC with additional 7,500 tons of
ammonia storage capacity per year at one of the following facilities (as determined by Agrium
U.S.): (i) CF’s facility located in Albany, Illinois, which facility is to be acquired at the
Closing, or (ii) CF’s facility located in Kingston Mines, Illinois, which facility is to be
acquired at the Closing (the facility selected, the “Additional Storage Facility”).



b. If the Effective Time occurs after June 30, 2010, then during the period between July 1,
2011 and June 30, 2016, Agrium U.S. shall provide REMC with additional 7,500 tons of ammonia
storage capacity per year at the Additional Storage Facility. In addition, Agrium U.S. and REMC
may mutually agree upon an


 


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arrangement for Agrium U.S. to provide REMC with additional 7,500 tons
of ammonia storage capacity at the Additional Storage Facility during the period between the
Effective Time and June 30, 2011.



c. Agrium U.S. shall also grant REMC an option to extend the use of the Additional Storage
Facility (as contemplated by Section 6(a) or Section 6(b) above, as applicable) for an additional
four (4) year period: (i) starting on July 1, 2015 and ending on June 30, 2019 in the event the
Additional Storage Facility is utilized pursuant to Section 6(a) and (ii) starting on July 1, 2016
and ending on June 30, 2020 in the event the Additional Storage Facility is utilized pursuant to
Section 6(b).



d. Except as provided in this Amendment, the terms and conditions of the terminal services to
be provided by Agrium U.S. with respect to the Additional Storage Facility shall reflect the same
terms and conditions currently in effect under Article III of the Distribution Agreement with
respect to the NIOTA Facility, as applicable; provided, however, that such terms
and conditions shall be adjusted pro rata to reflect 7,500 tons of ammonia storage capacity per
year to be used in the Additional Storage Facility relative to the storage capacity per year as
currently in effect under the Distribution Agreement with respect to the NIOTA Facility. For the
avoidance of doubt, except as otherwise expressly provided herein, with respect to storage at the
Additional Storage Facility (including level of service, freight costs, failure to receive ammonia,
risk of loss and access), all references to “NIOTA Facility” in Article III of the Distribution
Agreement (e.g., Section 3.5, 3.6, 3.7, 3.8 and 3.9 of the Distribution Agreement) shall be deemed
to refer to the Additional Storage Facility.



e. Notwithstanding anything in this Section 6 to the contrary, the terminal services fees with
respect to the Additional Storage Facility to be paid by REMC to Agrium U.S. shall be equal to (i)
the direct on-site, full operating costs (whether fixed and/or variable) per tonne charged at the
NIOTA facility (assuming the entire NIOTA facility is being utilized and determined in a manner
consistent with the methodologies set forth in the Distribution Agreement, as amended hereby)
multiplied by the number of tonnes utilized by REMC at the Additional Storage Facility plus (ii) a
$12,500 per month fixed fee.



7. Future Agreements with respect to Ammonia Barges. To the extent REMC, during any
period which is outside of the ammonia application season, determines that it needs to transport
ammonia products from the Facility to either the NIOTA Facility or the Additional Storage Facility,
Agrium U.S. agrees to enter into negotiations with REMC, in good faith, seeking to reach agreements
(containing commercially reasonable terms and conditions) with respect to the usage by REMC of
Agrium U.S.’s available and unused, if existing, ammonia barges capacity.



8. Consideration. If the Effective Time occurs and in addition to any payment by REMC
or any of its affiliates to Agrium U.S. or any of its affiliates pursuant to the terms of the
Distribution Agreement, as amended herein, as a consideration for the


 


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amendments, terminations,
transactions and services contemplated by this Amendment, REMC agrees to pay Agrium U.S. (a) in
the event the Effective Time occurs prior to October 1, 2010, an amount equal to U.S.$2,000,000 on
each of January 1, 2011, 2012, 2013 and 2014 (such that the total consideration to be paid shall
equal U.S.$8,000,000), or (b) in the event the Effective Time occurs on or after October 1, 2010,
an amount equal to U.S.$2,000,000 on each of January 1, 2012, 2013 and 2014 (such that the total
consideration to be paid shall equal U.S.$6,000,000).



9. Assignment of the Distribution Agreement to REMC. Notwithstanding anything in
Section 11 of this Amendment to the contrary, concurrently with the execution of this Amendment,
Rentech is hereby assigning, conveying or otherwise transferring its rights, title and interest
under the Distribution Agreement to REMC in accordance with Section 8.2 of the Distribution
Agreement. Notwithstanding anything herein to the contrary, Agrium U.S. consents to and
acknowledges this assignment and the parties hereby agree that this Section 9 shall survive any
termination of this Amendment.



10. Definition of the term “Pro Rata Share” in the Distribution Agreement.



a. Notwithstanding anything in this Amendment to the contrary, Agrium U.S., Rentech and REMC
hereby agree that the definition of the term “Pro Rata Share” in Article III of the Distribution
Agreement shall be amended to add the following phrase at the end of the definition thereof: “;
provided, however, that the Pro Rata Share shall not exceed a fraction, expressed as a percentage,
the numerator of which shall be equal to the Current Limit and the denominator of which shall be
equal to the Maximum SQ.”



b. Notwithstanding anything in Section 11 below to the contrary, the amendment of the term
“Pro Rata Share” as contemplated in Section 10(a) above shall become effective concurrently with
the execution of this Amendment.



c. Notwithstanding anything in this Amendment to the contrary, Agrium U.S., Rentech and REMC
hereby agree that this Section 10 shall survive any termination of this Amendment.



11. Conditions to Effectiveness of this Amendment. Except with respect to Section 9
and Section 10, which shall become effective immediately as of the date hereof, the consummation of
the transactions contemplated by this Amendment and the occurrence of the Effective Time shall be
conditioned on (i) the approval of this Amendment by the FTC in connection with Agrium Inc.’s
proposed acquisition of CF (the “FTC Approval”) and (ii) the occurrence of the Closing.
Agrium U.S. hereby agrees to provide Rentech and REMC with (a) a notice of the receipt of the FTC
Approval by
Agrium Inc., which notice shall be provided to Rentech and REMC within three (3) business days
following the receipt of such FTC Approval, (b) a notice of the anticipated date on which the
Effective Time is expected to occur, which notice shall be provided to


 


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Rentech and REMC reasonably
in advance of such date and (c) a written notice of the occurrence of the Closing, which notice
shall be provide to Rentech and REMC within three (3) business days after the Closing.



12. Further Assurances.



a. Each of the parties hereto shall use its commercially reasonable efforts to take, or cause
to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable
to effect the transactions contemplated by this Amendment.



b. Immediately following the execution of this Amendment, each of Rentech and REMC shall use
commercially reasonable efforts to work expeditiously and cooperatively with Agrium Inc. and the
FTC to obtain the FTC Approval, including provision of information, documents, and materials to the
FTC as requested by same.



c. Notwithstanding anything in Section 12(b) above to the contrary, under no circumstances
shall Rentech or REMC be obligated to provide any non-public information, documents, or materials
to Agrium U.S., the FTC or any other person without the prior consent of Rentech or REMC (which
consent shall not be unreasonably withheld, delayed or conditioned) and if such provision would
otherwise violate any applicable securities laws.



13. Termination. This Amendment shall be terminated (i) by a mutual written consent
of all of the parties hereto, (ii) at Agrium U.S.’s option, on or after October 31, 2009, if the
FTC Approval shall not have been obtained by such date, or (iii) at REMC’s option, on or after
April 25, 2011, if the Effective Time shall not have occurred by such date. Section 9 (Assignment
of the Distribution Agreement to REMC), Section 10 (Definition of the term “Pro Rata Share” in the
Distribution Agreement) and Section 17 (Expenses) shall survive any termination of this Amendment.



14. Assignment of Storage Facilities. Notwithstanding anything contained in the
Distribution Agreement to the contrary, at any time following the Effective Time, Agrium U.S. shall
have the right to assign, sell, convey or otherwise transfer (“Transfer”) all of its
rights, title, benefit and interest in the NIOTA Facility and the Additional Storage Facility
together with its rights and obligations under the Distribution Agreement and this Amendment with
respect to the NIOTA Facility and the Additional Storage Facility, as applicable, to any third
party; provided, however, that such Transfer (other than a Transfer to (i) one or
more of Agrium U.S.’s affiliates, which Transfer shall include the Transfer of all of Agrium U.S.’s
rights and obligations under the Distribution Agreement, as amended pursuant to the terms of this
Amendment, or (ii) any of Agrium U.S.’s or its affiliates’ senior lenders as collateral to secure
the
performance of their respective obligations to such senior lender, as applicable, which
Transfer referred to in clauses (i) and (ii) shall not require the consent of REMC) shall be
subject to the prior written consent of REMC, which consent shall not be unreasonably


 


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withheld,
conditioned or delayed. No such Transfer shall be effective unless and until REMC receives (A)
notice of the same and (B) confirmation from the transferee of its agreement to be bound by the
terms of the Distribution Agreement.



15. Confidentiality.



a. Each party agrees to keep confidential, and not to disclose or allow disclosure by any of
its representatives to others of any portion of, the terms of this Amendment (including, its
existence), except to its representatives on a need to know basis after they have agreed to be
bound by the terms of this Section 15.



b. Notwithstanding the foregoing, in the event either party is advised by counsel that such
party is required by law (including in any filings made by such party with (i) the Securities and
Exchange Commission, (ii) a Canadian securities regulatory authority or (iii) any national
securities exchange) to make any public disclosure of any of the terms of this Amendment
(including, its existence), such party may make such public disclosure. Notwithstanding anything
to the contrary contained in this Amendment or the Distribution Agreement, Agrium U.S. and its
affiliates (including Agrium Inc.) and their respective representatives may disclose to the
Canadian Competition Bureau and the FTC the terms of this Amendment (including, its existence).



c. The agreement by Rentech and REMC to provide information to the FTC and the consent to
disclosures by Agrium U.S. and Agrium Inc. to the FTC are based upon the understanding by Rentech
and REMC that the FTC is generally bound by statute and/or regulations to prevent public disclosure
of such information to the extent it is confidential.



16. Effect on the Distribution Agreement. Except as explicitly set forth in this
Amendment, all the terms and conditions of the Distribution Agreement shall survive the Effective
Time and shall continue to be in full force and effect thereafter. Except as explicitly set forth
in this Amendment, in the event this Amendment is terminated in accordance with its terms, upon
such termination, the Distribution Agreement, including all such terms and conditions contemplated
to be amended by this Amendment, shall continue to be in full force and effect as if this Amendment
had never been entered into. Except as explicitly set forth in this Amendment, from and after the
Effective Time and until this Amendment is terminated in accordance with its terms and conditions,
in the event of a conflict between the terms and conditions of this Amendment and the terms and
conditions of the Distribution Agreement, the terms and conditions of this Amendment shall
constitute the agreement between the parties herein and shall supersede the agreements contained in
the Distribution Agreement.



17. Expenses. Whether or not the transactions contemplated by this Amendment are
consummated, all costs and expenses incurred in connection with the
transactions contemplated by this Amendment and this Amendment will be paid by the party
incurring or required to incur such expenses.


 


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18. Notices. All notices, requests, demands and other communications made hereunder
shall be in wiring and shall be deemed duly given on the date of receipt if personally delivered
(or sent by facsimile) or five days after mailing if sent by mail, postage prepaid, to the
addresses set forth below or to such other address or person as either party may designate by
notice to the other parties hereunder:



	 	 	 	 	 
	 

	 	If to Agrium U.S., to:
	 	Agrium U.S.
	 

	 	 	 	c/o 13131 Lake Fraser Drive S.E.
	 

	 	 	 	Calgary, Alberta
	 

	 	 	 	Canada T2J 7E8
	 

	 	 	 	Fax: (403) 225-7610
	 

	 	 	 	Attention: Joni R. Paulus.
	 
	 	 	 	 
	 

	 	If to Rentech, to:
	 	Rentech Development Corporation
	 

	 	 	 	10877 Wilshire Blvd., Suite 710
	 

	 	 	 	Los Angeles, CA 90024
	 

	 	 	 	Fax: (310) 208-7165
	 

	 	 	 	Attention: Dan Cohrs
	 
	 	 	 	 
	 

	 	If to REMC, to:
	 	Rentech Energy Midwest Corporation
	 

	 	 	 	16675 Highway 20 West
	 

	 	 	 	East Dubuque, IL 61025
	 

	 	 	 	Fax: (815) 747-3110
	 

	 	 	 	Attention: John Ambrose






19. Power and Authority. Rentech and REMC, jointly and severally, represent and
warrant that (a) each has full power and authority, and has taken all action necessary, to execute
and deliver this Amendment and (b) this Amendment constitutes the legal, valid and binding
obligation of such party, enforceable in accordance with its terms. Agrium U.S. represents and
warrants that (a) it has full power and authority, and has taken all action necessary, to execute
and deliver this Amendment and (b) this Amendment constitutes the legal, valid and binding
obligation of Agrium U.S., enforceable in accordance with its terms.



20. Governing Law; Consent to Jurisdiction. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York without regard to conflict of law
principles of such State. To the fullest extent permitted by applicable law, each of the parties
herein hereby unconditionally and irrevocable waives any claim to assert that the law of any other
jurisdiction governs this Amendment. Each of the parties herein agrees and consents to be subject
to the exclusive jurisdiction of the United States District Court of the Southern District of New
York, and in the absence of such Federal jurisdiction, the parties herein consent to be subject to
the exclusive jurisdiction of a court of The State of New York located in such district and
hereby waive the right to assert the lack of personal or subject matter jurisdiction or
improper venue in connection with any such suit, action or other proceeding. In



 


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furtherance of the
foregoing, each of the parties herein (i) waives the defense of inconvenient forum, (ii) agrees not
to commence any suit, action or other proceeding arising out of this Amendment or any of the
transactions contemplated hereby other in any such court, and (iii) agrees that a final judgment in
any such suit, action or other proceeding shall be conclusive and may be enforced in other
jurisdictions by suit or judgment or in any other manner provided by law.



21. WAIVER OF JURY TRAIL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT SUCH PARTIES MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY SUIT OR ACTION ARISING
OUT OF THIS AMENDMENT. EACH PARTY HEREBY CERTIFIES THAT NONE OF THE OTHER PARTIES, ITS SENIOR
MANAGEMENT OR ITS REPRESENTATIVES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD
NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL. FURTHER, EACH PARTY ACKNOWLEDGES THAT THE
OTHER PARTIES RELIED ON THIS WAIVER OF RIGHT TO JURY TRIAL AS A MATERIAL INDUCEMENT TO SUCH PARTY
TO ENTER INTO THIS AMENDMENT.



22. Counterparts. This Amendment may be executed in one or more counterparts
(including by facsimile), all of which shall be considered one and the same agreement and shall
become effective when one or more counterparts have been signed by each of the parties and
delivered to the other parties.


 


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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered as of the date first above written.



	 	 	 	 	 
	 	AGRIUM U.S., INC.

 	 
	 	By:  	/s/ Bruce Waterman
 	 
	 	 	Name:  	Bruce Waterman 	 
	 	 	Title:  	SVP, Finance and CFO 	 
	 
	 	By:  	                     /s/ Kevin Helash
 	 
	 	 	Name:  	Kevin Helash 	 
	 	 	Title:  	VP, Marketing & Distribution 	 
	 
	 	RENTECH DEVELOPMENT CORPORATION

 	 
	 	By:  	/s/ Dan Cohrs
 	 
	 	 	Name:  	Dan Cohrs 	 
	 	 	Title:  	CFO 	 
	 
	 	RENTECH ENERGY MIDWEST CORPORATION

 	 
	 	By:  	/s/ John Ambrose
 	 
	 	 	Name:  	John Ambrose 	 
	 	 	Title:  	President 	 




 


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